Expert Witness Trial Preparation
Preparing an expert witness for trial is critical and is your job as retaining counsel. We recommend the following protocol for how to prepare an expert witness for trial:
- Obtain past trial transcripts of your expert witness and opposing counsel.
- Orient your expert witness
- Explain the likely goals of retaining counsel and how counsel will try to effectuate these goals (e.g. through leading questions he already knows the answers to)
- Provide your expert with general advice
- Tell the truth.
- Actively listen.
- “Do you know what time it is?”
- Picture question as if written on white board.
- Be yourself.
- Their job is to answer the questions truthfully and articulately.
- They should focus on the actual question asked.
- Speak English, not “technicalese.”
- If your expert witness doesn’t know or doesn’t remember, they should just say so.
- Don’t answer an unintelligible or confusing question.
- Do your homework and be very well prepared to answer key questions using headlines and bullet points.
- If there is an objection wait until the objection is resolved before answering.
- Identify areas of vulnerability for your expert witness.
- Independently ask your expert witness to identify additional areas of concern.
- Conduct a mock direct and cross examination with your expert witness.
- Explain to your expert witness how he should prepare on his own.
This involves the following steps:
- Having a full, complete, and exhaustive knowledge of the facts in the case, which will help
- Your expert witness identify questions based on incorrect facts
- Identify mischaracterizations
- Make your expert witness more confident
- Your expert make a favorable impression as a witness
- Possessing intimate and complete familiarity with any reports or other documents that the expert has authored or signed in the case as well as any expert declaration
- Knowing his deposition testimony cold.
- Personally touching every piece of paper in the file.
- Organizing the file oneself to allow quick and easy access to information even while under great stress.
- Thinking of the most difficult questions that counsel might ask and being prepared to truthfully and artfully reply to them.
- Being able to express and defend each and every opinion the expert has expressed in the case.
- Demonstrate to your expert the cross examination tactics they are likely to face.
- Expose your expert to trick and difficult questions.
Steve Babitsky, Esq. is a principal of SEAK, Inc. – the expert witness training company. Steve is the co-author of How to Prepare Your Expert Witness for Deposition. SEAK provides expert witness trial testimony preparation services for attorneys and expert witnesses.